Professors Reflect on 2009-10 U.S. Supreme Court Term

The U.S. Supreme Court continued its recent conservative trend during the past term, Professor A. E. Dick Howard said Wednesday during the annual Supreme Court Roundup.

Howard summarized the 2009-10 term before a packed Caplin Pavilion during the event, which is sponsored by the Student Legal Forum. Professors Barbara Armacost, Leslie Kendrick and Thomas Nachbar also discussed prominent cases from the past term.

“First, I think it is fair to say there’s been a distinct shift to the right,” Howard said. “It hasn’t been monolithic, but somewhat ad hoc. But it’s surely clear that [Justice Samuel] Alito taking the place of [former Justice Sandra Day] O’Connor matters.”

Howard also sees a strong correlation “between the political party of the appointing president and the ideological direction of a particular judge’s decisions.”

“It used to be thought that the court was full of surprises,” he said. Justices Harry Blackmun, John Paul Stephens and David Souter often defied ideological expectations. “I think that behavior, by and large, by the present court is going to be much more predictable than had been the case in the past.”

Howard described the current Supreme Court as an activist court. “We associate activism with liberalism because back in the Warren and Berger days, it was the liberal justices who by and large were doing the overruling or overturning,” he said. “But now that conservatives are more in control, they are the ones who are using those same techniques.”

The Supreme Court has increasingly become the court of Chief Justice John Roberts, Howard said. In the most recent term, Roberts was among the majority 92 percent of the time. Howard said the past term, at least in part, “justifies the conventional view of the court as being four conservatives, four moderate liberals, and Justice [Anthony] Kennedy in the middle.”

Because there were big cases decided along ideological lines by a 5-4 vote, Kennedy remains “in the catbird seat,” Howard said.

“What we’re seeing is the fruits of a conservative agenda that started very much in the Reagan administration, with the Reagan justice department, for which by the way, Roberts and Alito worked as young lawyers,” he said. “However, I would add that if one then surveyed the term more generally, I think the record would be a bit more mixed than that easy categorization might suggest.”

The first centered on whether a suspect has to invoke his or her Miranda rights to be afforded their protection, Armacost said.

“In Berghuis, the Roberts’ Court has followed the Rehnquist Court in making it easier for police to obtain confessions,” Armacost said. “The Roberts’ Court has continued this trend of chipping away at the safe harbor.”

In a 5-4 decision, the court ruled that suspects must invoke their rights to enjoy their protection. Furthermore, any conversation among suspects and police constitutes a waiver of Miranda rights, she said.

“The invocation ‘safe harbor,’ I’m calling it, is the heart of the Miranda protection,” Armacost said. “If police can badger suspects into waiving after they’ve invoked their rights, then the right to silence and an attorney mean nothing.”

In Graham v. Florida, the court considered whether sentencing a juvenile to a life in prison without parole for a non-homicide offense constitutes cruel and unusual punishment. By a 6-3 vote, the court ruled that such a sentence violates the Eighth Amendment’s doctrine against cruel and unusual punishment.

“The case does invite new arguments that will undoubtedly lead to more litigation,” Armacost said. Attorneys for juvenile offenders and the mentally ill or mentally retarded might argue that other rules preclude certain sentences from being applied to their clients, she said.

Leslie Kendrick

Professor Leslie Kendrick discussed Citizens United v. Federal Election Commission, in which the court wrestled with the legality of limits on corporate campaign spending.

One result of the court’s ruling was the “intergovernmental throwdown at the State of the Union address,” when President Barack Obama chided the court for its decision, Kendrick said.

The court’s decision struck down bans on corporate campaign spending such as those found in the 2002 Bipartisan Campaign Reform Act sponsored by Sen. John McCain and Sen. Russell Feingold.

The decision could also lead to new legal questions in areas such as campaign spending by foreign corporations and direct corporate contributions to candidates, Kendrick said.

“In the future we might see a lot more campaign finance [litigation],” Kendrick said. “This might only be the beginning.”

Former Enron CEO Jeffrey Skilling had been convicted of fraud for failing to disclose Enron’s financial distress while still receiving his salary and benefits.

The majority decision ruled that the vague fraud statutes used to convict Skilling were designed to criminalize “bribery and kickbacks.”

“Skilling confounds attempts to classify the court and members of the court as liberal or conservative,” Nachbar said, as justices of different perceived ideologies joined together for the majority decision.